JUDGMENT
S.B. Sinha, J.
1. This writ application is directed against an order dated 4th March, 1982, passed by the respondent No. 2 whereby and whereunder he refused to approve the service of the petitioners as contained in Annexure ‘1’ to the writ application.
2. The facts of the case lie in a very narrow compass. The petitioner was allegedly appointed on 10-9-1981 by the Managing Committee in Patel High School, Narainpur, situated in the District of Darbhanga. The appointment letter was given to the petitioner on 22-9-1971 under the signature of the Secretary of the said school. The petitioner has urged that the Secretary of the said school sent the name of the petitioner for approval of his appointment to the Sub-divisional Education Officer on 23-9-1971 but no decision was communicated in this regard. Thereafter, a reminder was sent on 13-3-1972 but inspite thereof no order was passed by the Sub-divisional Officer. The petitioner has further asserted that again on 19-1-1973, 19-12-1973 and 10-4-1974 remainders were sent to the Sub-divisional Education Officer. The petitioner has further asserted that the Headmaster of the said school also wrote a letter on 5-11-1974 to the Sub-divisional Education Officer for approval of the appointment of the petitioner. Thereafter, certain informations were solicited by the Assistant Secretary of the Secondary Education Board by a letter dated 23-8-1978, but the District Education Officer, as it appears, did not send reply to the said letter of the Board.
3. According to the petitioner, at the time of his appointment, he was holding a master degree in Arts and in April, 1975 he went to complete research for Doctorate of Philosophy Degree and he submitted his thesis in March, 1979. The petitioner remained on leave from April, 1975 to 1st April, 1979. Thereafter, the petitioner was allowed to join the said school on 2-4-1979.
4. By a letter dated dated 22-4-1979 addressed to the District Education Officer the Assistant Secretary of the Board opined since the petitioner was in the school only from 1971 to 1975 and, as such, the question of giving approval of his appointment does not arise. The petitioner filed an application in this Court under Articles 226 and 227 of the Constitution of India, which was registered as C.W.J.C. No. 1735 of 1979. By a judgment dated 9’4-1980, the said writ application was directed to be withdrawn in order to enable the petitioner to represent his case before the Board. Pursuant to the said judgment the petitioner filed a representation resulting in passing of the impugned order dated 8-2-1982 as contained in Annexure ‘1’ to the writ application. The respondent No. 2 has passed the said impugned order only on the ground that in terms of the Bihar School Vidyalaya (Seva Sart) Niyamawali, 1972, the maximum period for which leave of any kind could be granted was 12 months. The respondent No. 2 in his order held that in such a situation the question of approving the service of the petitioner does not arise.
This approach of the respondent No. 2, in my opinion, is not in accordance with law.
5. It has been held by a Division Bench of this Court in case of Sobhana Das Gupta v. The State of Bihar and Anr. that a person’s absence from service constitutes the misconduct but the service of an employee cannot be terminated only on that ground. If the petitioner, in the eye of law, continued to be in the service, then in such a situation the approval so far as service of the petitioner is concerned should not have been rejected on that ground. It is, however, admitted that the service of the petitioner was not approved from the very beginning.
6. In this view of the matter the impugned order, as contained in Annexure ‘1’ to the writ application, is set aside and respondent No. 2 is to pass a fresh order disposing of the representation of the petitioner by a speaking order.
7. With the above observations and directions the writ petition is disposed of.